Ogden and Ogden
[2012] FMCAfam 616
•27 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGDEN & OGDEN | [2012] FMCAfam 616 |
| FAMILY LAW – Interim parenting orders – unilateral interstate relocation. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 65DAB, 69ZT Evidence Act 1995, s.140(2)(c) |
| Cales & Cales, [2010] FamCAFC 237, (2010) 44 Fam LR 376, (2010) FLC 93-459 MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93,424 |
| Applicant: | MR OGDEN |
| Respondent: | MS OGDEN |
| File Number: | PAC 5304 of 2011 |
| Judgment of: | Halligan FM |
| Hearing dates: | 25 May & 1 June 2012 |
| Date of Last Submission: | 1 June 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 27 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | Family Law Group Solicitors |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
Pending further order, the parents shall have equal shared parental responsibility for the children [W] born [in] 2000, [X] born [in] 2002, [Y] born [in] 2005 and [Z] born [in] 2006.
Pending further order, the children shall live with the mother.
The mother shall cause the children to return to live in New South Wales within 30 kilometres of [W] School by 15 July 2012, and thereafter, pending further order, both parties are restrained from moving the children’s place of residence outside that area without the written consent of the other parent or a court order.
It is a condition of the preceding order that from the date the mother complies with that order, in addition to child support as assessed from time to time, the father pay as and when they fall due all payments on the loan in relation to the motor vehicle in the mother's possession and all of the children’s school expenses in New South Wales, including but not limited to-
(a)Uniforms;
(b)Stationery;
(c)Books;
(d)Excursions; and
(e)Camping trips.
If the father fails to comply with the preceding order, the restraint on the mother not changing the children’s place of residence more than 30 kilometres from [W] School shall thereupon be suspended.
The mother shall notify the father of the date the children will return to live in New South Wales and of the address at which they will live under the preceding order not less than 48 hours before they do so.
Pending further order, the father shall provide the mother with a copy of his current work roster within 48 hours and thereafter shall provide the mother with each new work roster within 48 hours of receiving it.
Pending further order, the children shall spend time with the father-
(a)During each of the father's rostered off periods, from 5.00 pm on the first rostered day off to 5.00 pm on the third rostered day off, commencing in the father's first rostered off period that begins after the children return to live in New South Wales;
(b)For half of all New South Wales school holidays as agreed, or failing agreement for the second half in 2012 and each alternate year thereafter and for the first half in each other year;
(c)Notwithstanding any other provision of these orders, from 9.00 am on 24 December to 2.00 pm on 25 December in 2012 and each alternate year thereafter, and from 2.00 pm on 25 December to 7.00 pm on 26 December in 2013 and each alternate year thereafter;
(d)On each of the children’s birthdays, from 4.00 pm to 6.00 pm if a school day and otherwise from 2.00 pm to 6.00 pm, provided the father is not rostered to work during that time; and
(e)On the Father's Day weekend, if not otherwise spending time with the father, for such period between 5.00 pm on the Saturday before Father's Day and 5.00 pm on Father's Day as the father shall notify the mother in writing not less than four weeks in advance.
Pending further order-
(a)The father's time with the children under the preceding order is suspended from 5.00 pm on the Saturday before Mother's Day to 5.00 pm on Mother's Day.
(b)If the children are spending time with the father under the preceding order other than para.(d) thereof on any of the children’s birthdays, the father's time is suspended from 4.00 pm to 6.00 pm if a school day and otherwise from 2.00 pm to 6.00 pm.
Pending further order, the father shall collect the children from the mother's residence at the commencement of his time with the children and the mother shall collect the children from the father's residence at the conclusion of his time.
Pending further order, the father may communicate with the children by telephone between 7.00 pm and 7.30 pm on the first day in each rostered on period and between 5.30 pm and 6.00 pm on the third day in each rostered on period.
Pending further order, both parties shall keep the other informed of their residential address and telephone numbers, and shall notify the other not less than 7 days before the event of any change of address and within 24 hours after any change of telephone number.
Pending further order, the father is restrained from-
(a)Consuming alcohol when the children are with him and during the period of 12 hours preceding the children coming into his care; and
(b)Exposing any of the children to sexual conduct.
Pending further order, each of the parties is restrained from-
(a)Denigrating the other parent or members of the other parent’s family to or in the presence or hearing of any of the children and shall immediately remove the child or children from the presence and hearing of any other person who does so;
(b)Discussing these court proceedings or issues raised in them with or in the presence or hearing of any of the children and shall immediately remove the child or children from the presence and hearing of any other person who does so;
(c)Causing or permitting any of the children to see or read any document filed in or prepared for these proceedings and from causing or permitting any other person to do so; and
(i)Using the children to pass messages between the parents in relation to parenting arrangements or issues.
IT IS NOTED that publication of this judgment under the pseudonym Ogden & Ogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5304 of 2011
| MR OGDEN |
Applicant
And
| MS OGDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested interim parenting proceedings under the Family Law Act 1975.
The broad issue for determination is whether, pending the final hearing of the matter, the parties’ four children should live-
a)in a shared care arrangement with the parents in western Sydney; or
b)primarily with the mother in western Sydney and spending regular time with the father; or
c)primarily with the mother in south east Queensland and spending less regular time with the father.
There is also an issue about parental responsibility.
I will canvass the proposals of both parties and the Independent Children's Lawyer in detail later in these reasons.
Background
The father is aged 43 and the mother is 38. The parents commenced cohabitation in mid 1996, married [in] 2004 and separated on 26 October 2011, when the mother left the matrimonial home with the children and moved to south east Queensland. They have four daughters - [W] born [in] 2001, aged 11; [X] born [in] 2002, aged 10; [Y] born [in] 2005, aged 7; and [Z] born [in] 2006, aged 6.
No parenting orders have previously been made about the children. There have been no family violence orders made against either parent. There is no parenting plan in relation to the children.
On 25 May 2012, I made interlocutory orders by consent for the sale of the parties’ former matrimonial home, and for the net proceeds of sale, after payment of the debt secured on the property, to be held in trust pending the determination of the property settlement dispute between the parties.
The applicable law
The issues for current determination come under Part VII of the Family Law Act 1975, as they concern interim parenting orders. Section 60B sets out the objects of Part VII and the principles underlying those objects.
Part VII provides in s.65D that in parenting proceedings the Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (court to have regard to parenting plans). As there have been no parenting plans about these children, s.65DAB is not relevant.
In deciding whether to make a particular parenting order, the court must regard the children’s best interests as the paramount consideration (s.60CA). Section 60CC sets out what the court must consider in determining what is in the children’s best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (s.65DAA(1)(a) and (2)(c)) and whether such an arrangement is reasonably practicable (s.65DAA(1)(b) and (2)(d)). If the court is affirmatively satisfied of both matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
The High Court has emphasised the essential character of the requirement to consider s.65DAA(1)(a) and (b) and, where relevant, s.65DAA(2)(c) and (d), in the decision making process, going as they do to the very power of the court to make a parenting order when s.65DAA applies (MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93,424). And s.65DAA applies whenever there is an equal shared parental responsibility order in force, or if the court intends to make one, whether via an unrebutted presumption under s.61DA or independently of s.61DA. On the other hand, the absence of an equal shared parental responsibility order or the intention to make one does not preclude the court making an order for equal time or substantial and significant time if satisfied it would be in the best interests of the child, although in that case, the court is not required to consider as a discrete matter separate from the best interests considerations, whether such an arrangement if reasonably practicable.
As is usual in interim proceedings, the court has not heard any cross-examination of the witnesses, and therefore is not in a position to resolve factual conflicts. As the Full Court said in Goode & Goode, above at [68]-
“(T)he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
Later, the Full Court said (at [81] - [82])-
“81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
The Full Court in Deiter & Deiter, [2011] FamCAFC 82 made further pertinent comments about the treatment of untested evidence on contested issues of fact in interim parenting matters, especially where that evidence, if true, raises the possibility of risks to the child. Their Honours said-
“59.We have earlier set out those parts of his Honour’s reasons which dealt with the mother’s evidence concerning the father’s violence. His Honour decided that, because the allegations were ‘vehemently refuted’, it was impossible to make any finding concerning their veracity. Given that the parties’ accounts were in such stark contrast, and given there had been no cross-examination, we accept it was not possible to make a conclusive finding.
60.Notwithstanding that, we are nevertheless of the view that his Honour should have placed much more weight than he ultimately did on the mother’s evidence. In our view, his Honour needed to do this in order to attempt to assess the risks to the mother and children if the mother was required to take up residence in closer proximity to the father (and placed in a position where potentially she had to facilitate eight handovers every week).
61.The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
After referring to the comments in Goode & Goode quoted above that “where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible”, the Full Court continued (at [77])-
“Faced with these inconsistencies, there is no doubt his Honour needed to deal with the untested evidence very carefully. However, in our view, it was not open to him just to ignore it, merely because it had not been tested. In our view, the untested evidence should have been considered in light of the uncontested evidence …”
In relation to interim orders sought by both the father and the Independent Children's Lawyer that the mother return the children to live in the Sydney area, the court has power to make an order as to where a child shall live, including power to require a parent to cause a child to live in a designated place or area and power to restrain a parent moving a child’s residence from a designated place or outside a designated area. Such power is either a parenting order or an injunction under s.68B ancillary to a parenting order (Cales & Cales, [2010] FamCAFC 237 at [80] and [89], (2010) 44 Fam LR 376, (2010) FLC 93-459).
The competing proposals
The father's proposals
The father proposed that the children return to live in the general area of western Sydney within which the parties and children have lived for all but one month of the children’s lives until the mother unilaterally relocated to south east Queensland on separation in late October 2011. He proposed that he have sole parental responsibility. He proposed what he termed an equal time care arrangement in accordance with his work roster.
The orders sought by the father to implement this outcome were attended by some difficulties.
The father, who was not legally represented at the interim hearing, sought an order restraining both parties from relocating the children’s place of residence more than 30 kilometres from the school the children had last attended before the mother moved them to Queensland. However, where the children no longer lived in that area, a restraint on moving the children outside that area, without more, would be meaningless. The father confirmed that what he in fact sought was that the mother return the children to live within that area and thereafter both parties be restrained from moving the children’s residence outside that area. The mother raised no objection to my treating his application in that way. The father supported a return by the date sought by the Independent Children's Lawyer, 1 July 2012.
The way the equal time care arrangement was formulated in the father's amended application was as follows-
“For four consecutive days with the applicant husband followed by four consecutive days with the respondent wife commencing with the applicant husband's first rostered day off work following the making of these orders and continuing in an alternating pattern.”
The father works a four days on, four days off roster. He works two consecutive shifts from 7.00 am to 7.00 pm, then two consecutive shifts from 7.00 pm to 7.00 am, than has four days off, that is, from the end of his second night shift at 7.00 am to the commencement of the next day shift at 7.00 am four days (96 hours) later.
As I understand the father's clarification of when the children would pass between the parents to effect his proposed equal time arrangement, the children would come into his care on the day on which the fourth shift in a four shift sequence ends, at 9.00 am if not a school day or after school if a school day, and return to the mother's care on the evening before he is due to commence his first shift in the next sequence of four shifts. This would entail the children spending three nights in every eight in the father's care.
The father ultimately indicated that if the mother returned with the children to the Sydney area, he was willing to pay the loan repayments on the motor vehicle in the mother's possession, in the amount of $145 per week, and “all educational expenses that the children require including but not limited to uniforms, stationery, books, excursions, camping trips.” He indicated these payments would be over and above all entitlements of the mother to Centrelink payments and child support payments.
If the court ordered the children to be returned to the Sydney area and the mother did not move back with them, the father proposed that the children live with him and spend time with the mother for half of all New South Wales school holidays, with the mother to collect the children from his place of residence. He did not stipulate where or how the children would return to his care after spending time with the mother.
The father proposed that the children return to the school they most recently attended before the mother took them to Queensland.
The father said his parents are both retired and had offered assistance if required. He said he had two sisters living in the area in which he proposed the children live, and both had offered assistance if required. He said the partner of one of those sisters had also offered assistance if required. The father did not rely on affidavits from any of these people. The father's evidence about these offers of assistance was given at a time when the only orders he sought were for an equal time care arrangement, with the children to be in his care only when he was not working.
If the children returned to live in the Sydney area and the mother did not, and hence under his alternative proposal he had the full time care of the children, the father submitted that his mother would care for the children when he was at work. The evidence to support this submission is tenuous at best, requiring an assumption that the non-specific general offers of assistance from five people that the father referred to in the context of an application that the children only be with him when he was not working, in fact extended to an offer from his mother to care for the children during all times he is working, except for school holiday times when the children under the father's proposals would be with the mother. When this was raised with the father, he said his mother was at that time preparing an affidavit on this issue. However, such an affidavit was never put before the court, and when the father was specifically asked whether he wanted the matter adjourned or whether he wanted the matter determined on the evidence then before the court, he clearly stated that he wanted the matter decided now and did not want the matter adjourned.
If the court did not order that the children return to live in the Sydney area, the father did not say what he thought the court should order about his time with the children. I do not infer from this that the father then would not wish to spend time with the children, but the father's failure to articulate what he would then seek, despite being specifically requested to do so, means the court does not have the benefit of the father's views or submissions on this option, and hence does not know what he would say, for example, about whether he could move to live in Queensland to live near the children and what parenting arrangement should then be put in place, or if he could not move to Queensland what time he thought he should spend with the children, whether that time should be in Queensland or New South Wales, what changeover arrangements should apply, and who should meet the costs of any travel involved, not that the court had evidence from either party as to what that cost might be.
The mother's proposals
The mother proposed that the children remain living with her in south east Queensland in the home of her mother and step-father and that she have sole parental responsibility. She proposed that [W] spend time with the father, when her siblings did so, in accordance with her wishes. She proposed that the three other children spend time with the father in Queensland each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, provided the father gave the mother seven days’ notice of his intention to exercise the time. The mother further proposed that the father spend time with the three other children in New South Wales for half of all Queensland school holidays, the mother or the maternal grandparents to deliver the children to and collect the children from the father at Sydney airport.
The mother proposed that the father pay “all airfares in relation to” the children spending school holiday time with him. That would seem to be a requirement that to spend time with the children in each school holiday period, the father would be required to pay the return airfares for each of the children attending to spend time with him (either three or four children, depending on [W]’s views under the mother's proposal), as well as two return airfares for either the mother or for each of the children's maternal grandparents, depending on who attended for changeover. The mother provided no evidence as to the likely cost of return airfares, nor did she identify which airport the children would be leaving from and returning to at the beginning and end of school holiday time with the father.
As the mother was aware, the father's work roster prevents him being available to spend time with the children on alternate weekends. That presumably is why she proposed that the father give her notice of when he intended to exercise alternate weekend time. But the mother would also have been aware that providing for the children to spend time with the father on alternate weekends would prevent the children spending time with him on all weekends he is available, because his free weekends occur in a pattern not compatible with an alternate weekend arrangement.
In an eight week cycle commencing on a Monday when the father commences a four day rostered-on period at 7.00 am, the father would have only the first and eighth weekends when he was available from 5.00 pm Friday to 5.00 pm Sunday, the times the mother proposed the father and the children spend together. Thus, he would be limited to seeing the children one weekend in eight under the mother's proposals, despite being available to see them on two weekends in eight.
If the court ordered that the children live in the Sydney area, the mother did not articulate any alternative orders she would seek, despite my specifically enquiring. As best I could understand it, the mother's position as conveyed by her counsel was that if the court ordered the return of the children to Sydney, she wished to be where her children were but she was unable to indicate whether she would return due to significant practical difficulties it was said the mother faced, including the fact that the father had all the parties’ furniture and the mother had no bond money. These matters were adverted to for the first time at the very end of final submissions. The mother gave no evidence about bond money or needing furniture, despite my raising the need to address issues going to reasonable practicability on both days the matter was before me, those days being a week apart. And as with the father, the mother explicitly declined an opportunity for the proceedings to be further adjourned, which would have enabled her to put evidence about these matters before the court. She instead sought that the court determine the matter now.
The Independent Children's Lawyer’s proposals
The Independent Children's Lawyer proposed orders requiring the mother to return the children to live in “the Sydney metropolitan area” no later than Sunday 1 July 2012, that the parents have equal shared parental responsibility, that the children live with the mother, and that the children spend time with the father for a period encompassing two days and nights during each of his rostered off periods. The Independent Children's Lawyer did not propose that the children spend any block school holiday time with the father.
The Independent Children's Lawyer proposed a definition of “the Sydney metropolitan area” as being “as far north as [omitted], as far south as [omitted] and as far west as the commencement of [omitted]. This area remains uncertain, and is not consistent with the area delineated in the father's proposals. It is unclear whether, if the mother lived in the same town as the school to which the father seeks the children to be returned, she would be within the area proposed by the Independent Children's Lawyer.
To be enforceable, an order must be unambiguous and clear in its terms, capable of being understood by those who have to comply with it. In my view, the geographical delineation of the area in which the Independent Children's Lawyer proposed the mother return the children to live is vague and uncertain at best, and ought not be used in any order the court may make. In my view, if the children are to be returned to the Sydney area to live, the area in which they are to live should be both smaller and more clearly identified and identifiable, such as the father proposed.
If the mother “would not” return to Sydney to live, then the Independent Children's Lawyer proposed that the children should remain living with the mother in Queensland and, as best I understood her position, spend time with the father during school holidays and on weekends when he was available. The reference by the Independent Children's Lawyer to the mother in effect refusing to return to the Sydney area (“would not” return) implies that the Independent Children's Lawyer was of the view that the mother could return if she chose to do so.
Other possible parenting arrangements
I have not raised with the parties and the Independent Children's Lawyer any other possible parenting arrangements.
I have not raised an option of the children remaining with the mother in south east Queensland and the father relocating to that area because the evidence of both parties is totally silent on the issue, no submissions have been addressed to me by either party or the Independent Children's Lawyer raising this as a possibility, and this is an interim determination, not a final one. If I ordered the children to live with the mother in south east Queensland until a final determination, for the father to move there he would need to either seek a transfer with his current employer, if such was an option, or seek new employment, and he would have to move away from his family support network. If the ultimate determination was that the children should return to live in the Sydney area, the father would then need to seek another transfer with his current employer, if such was an option, or again seek new employment. There is no evidence whether the father could seek a transfer with his current employer, and there is no evidence of the availability of employment suited to the father's training and experience in the general area the mother has moved to.
The evidence
Child care during cohabitation
There is an issue about the extent of the father’s involvement in the care of the children before separation. The father suggested that when he arrived home from work, at least in the evening, the mother would immediately pass the care of the children to him and go and watch television. He suggested that when she was caring for the children, the mother cooked a restricted range of food for the children, and left much of the care of the two youngest children to the two oldest children. He said he cooked meals for the children, attended the children's school functions when not prevented by work commitments, assisted the children with homework and school projects, did the majority of the housework with the children, and attended parent/teacher interviews, sometimes on his own.
The mother suggested that the father was not much involved in the care of the children, and said that the father left the care of the two youngest children to the two oldest children when she was briefly hospitalised in 2011.
While I cannot make definitive findings on the extent of the father's involvement in the care of the children, I am satisfied that by virtue of the parties’ respective work histories, which seem not to be in dispute, that the mother was more likely than not to have been the children’s primary carer. The father continued in full time work throughout. On occasions he worked a second part time job. The mother only worked on a part time basis after the birth of the first child. Thus, the mother of necessity was the parent who had to provide the bulk of the children’s care from birth. That is not to say I am satisfied the father was little involved in the children’s care. The extent of his involvement remains in issue and for determination in a full hearing.
I also note that despite some criticism by the father of the care the mother provided to the children, he nonetheless proposed that they live with her half the time. The clear inference is that she can provide for the children at least as well as he can, and in my view puts into perspective the criticisms he made. I am satisfied they are relatively minor, if in fact they are correct.
There is no issue that these children have had frequent changes of schools. The two older children have attended the school the father proposes they return to on two separate occasions. It appears that the two oldest children have not attended the same school continuously for longer than about 18 months, while it appears that the longest the two youngest children have continuously attended the one school is ten months.
Separation and mother's relocation of children
It seems not in issue that immediately before separation, the parties and the four children were living in a two bedroom granny flat at the former matrimonial home and the father's sister and her partner Mr P were living in the parties’ four bedroom home at the same address. The parties had returned to the former matrimonial home from rented accommodation they had been living in shortly before. The mother asked the father to have his sister and partner move out so the family could reoccupy the home because the granny flat was too cramped. The father refused her request. The mother then asked the agent managing the letting of the home to give the husband's sister and partner notice to vacate, but the father countermanded it. The parties argued about this.
The mother said she left the matrimonial home because of the father's “violence and alcohol consumption”. I will deal with these issues later. She said she did not have a support network in New South Wales and her only means of supporting the children was by relocating to Queensland.
At separation the mother took the children and moved to live with the children’s maternal grandmother and her partner in the partner’s house in south east Queensland.
There is a factual issue whether or not the mother told the father before separation that she was intending to move with the children to Queensland. While I am unable at this interim stage of the proceedings to resolve this issue, there appears to be no factual issue that the mother moved with the children to Queensland at separation without the father's agreement, or any forewarning of when she proposed to do so.
The mother refused to tell the father where the children were after she left the matrimonial home. She gave the father a street address for service of notices that was not her address. She ultimately divulged the children’s address to the father for the first time when she filed affidavit evidence in these proceedings, which the father instituted a few weeks after the mother left.
Father's time and communication with children since separation
Since separation the father has seen all four children once, for a week during the January 2012 school holidays at the parties’ time share on the Gold Coast with the mother also present. The father saw the three youngest children in the mother's presence for a short period on 5 April 2012 in the Sydney area when the mother brought the children to New South Wales to see the Independent Children's Lawyer.
The mother initially refused the father's request to have the children for a week in the Christmas school holidays, other than day time only close to where she was living. I note the mother is now proposing that the father have block school holiday time in New South Wales.
The mother's evidence is that the four children communicated with the father by telephone or via Skype on five occasions between separation and late January 2012, and the three youngest children communicated with the father on another two occasions between late January and mid February 2012.
The mother said Skype was no longer available as her step father, who provided the internet connection where she and the children were residing, was not prepared to allow it to continue to be used for Skype communication between the children and their father as it used too much of the download allowance. The mother gave no evidence of the cost of increasing the download allowance or of her ability to contribute to that cost.
All communication between the father and the children, including by telephone, seems to have ceased in April. The evidence does not suggest why.
The mother said on one occasion while communicating with the children via Skype, that father said to them they would soon be home with him and the police would be coming to get them, causing the children to cry.
Both parties passed messages about arrangements for the father to see the children during the Christmas school holidays through [W]. This was a most inappropriate involvement of the child in the parental conflict by both parties. It is also indicative of the difficulty the parties have had since separation communicating with each other about the children.
The mother asserted that [W] did not see the father with her siblings in April because the child did not want to. She said [W] has indicated to her that she neither wants to see nor speak to the father.
The mother gave evidence of attending the former matrimonial home with [W] in 5 April 2012 for [W] to recover some personal possessions, and for the mother to do the same. This was on the same day but before the three youngest children spent some time with the father. She said that when they arrived at the former matrimonial home, the father was present and he approached [W], who held her hand up to the father and said “Stop don’t come near me”. She said the father refused [W]’s request to go and get her possessions. She said he also refused the mother's request to get some personal items from the home. This incident occurred after the father swore his affidavit. I do not know whether the father accepts the mother's evidence about this incident. The mother has not sought an order for the delivery to her of the items she said [W] was attempting to recover.
Before this incident, the mother said [W] had stopped speaking to the father on the phone when her siblings did. The child’s asserted rebuff to the father's approach on 5 April 2012, if true, suggests there was a pre-existing problem. The mother gave no evidence of attempting to discover the reason for [W]’s asserted estrangement from her father, of attempting to address whatever may be the underlying cause of the child’s asserted views, or of encouraging the child to see or communicate with her father.
Alleged social security fraud
There is no issue that there was a significant overpayment of Centrelink benefits to the mother during the parties’ cohabitation. She currently owes in the vicinity of $100,000 to Centrelink, which she is repaying by a fortnightly deduction from her Centrelink benefits.
The father said that during the parties’ relationship, the mother “fraudulently” obtained certain Centrelink benefits, including “the single parenting payment”. He gave no evidence to prove the allegation of fraud. He said that “a few years ago” Centrelink demanded repayment of a large sum, and stopped making payments to the mother before separation.
The father said the mother's allegedly fraudulent receipt of Centrelink benefits was a relevant consideration adverse to the mother in deciding the interim parenting issue.
The father did not assert that the “fraudulent” Centrelink claim by the mother was made without his knowledge, nor did he say when he first became aware of it or that he objected to it when he did. The father said that the parties moved to rented premises in December 2008 as the mother wanted to avoid investigators from Centrelink. He said the lease was put in the mother's sole name. After separation, the father threatened the mother in a text message with imprisonment for the alleged fraud, asserting he had secured immunity from prosecution in return for giving evidence against the mother.
While the witnesses have not been cross-examined, and the Court must be cautious in drawing inferences adverse to a party where after cross-examination a different picture may emerge, I am nonetheless satisfied that the evidence as it stands would support an inference that the father was aware of the alleged fraud by the mother long before the parties separated, and acquiesced in it. In my view the evidence about the Centrelink overpayment as it currently stands is insufficient to raise any matter adverse to the mother in the context of the interim parenting dispute. Nor does it raise a matter adverse to the father.
Alleged family violence
The mother asserted she had been the victim of family violence. The father denied it. The court must nonetheless consider the mother's evidence, albeit denied, to determine whether if accepted it proves family violence, and the court must then consider that disputed evidence within the context of any undisputed evidence when it performs the risk assessment necessary in such cases, especially in the reconciliation of the two primary considerations under s.60CC(2) (see Deiter & Deiter, above).
The Family Law Act 1975 defines family violence as follows (s.4(1))-
“Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that person or another member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”
The mother said that when pregnant with [W], the father pushed her causing her to fall down. She said the father then left and stayed with his mother for one or two weeks.
The father said that in 1998, before the mother was pregnant, the parties argued, he attempted to leave with some of his clothes, the mother blocked his exit, he moved the mother out of the way with his hand, the mother slumped to the floor and clutched his leg, he pushed her off and he left. He denied ever assaulting the mother or the children.
It was submitted on behalf of the mother that from the mother's evidence about this incident, I should infer that, if it was true, the mother was in fact fearful or apprehensive about her personal wellbeing and safety.
I note that the mother gave no evidence of the circumstances in which she was pushed and fell over, but the tenor of her evidence makes it clear that she was asserting it was not accidental or otherwise innocent.
I accept that the facts asserted, if true, are capable of supporting a finding that the requisite fear or apprehension, if proven, was reasonable. This is especially so when one considers the mother's statement that she was eight months pregnant at the time. However, there is no direct evidence that the mother held the requisite fear or apprehension.
I accept it is possible to infer the existence of the requisite fear from circumstances surrounding an incident of alleged family violence, for example from evidence about what the alleged victim did or said at the time. But there is no evidence of the mother doing or saying anything on this occasion. The court is asked to infer the fact the mother was fearful for or apprehensive about her personal wellbeing or safety from the asserted fact of the father pushing the mother over when she was eight months pregnant and the father leaving the home and remaining away for about a week.
Although not a particularly strong argument, I am prepared to accept for present purposes at this interim stage that it is so probable that the mother would have been fearful for her safety and wellbeing if she fell over when eight months pregnant that I should infer she was in fact fearful. I am therefore prepared to proceed on the basis that if true, the mother's evidence is probative of family violence.
The mother said that the family dog, to which [X] was particularly attached, was “frequently naughty” and that the father repeatedly kicked it when it did something wrong. She said the children became upset on these occasions and [X] was often in tears because the father hurt the dog. No specific occasion was identified.
The father admitted kicking the dog gently once because it continually defecated indoors and other methods of training had failed, and that [X] was upset. He said he explained to [X] he was not trying to hurt the dog.
It is thus common ground that on one occasion the father kicked the children’s pet dog, and that [X] became upset as a result. I am satisfied this may meet the definition of family violence.
In the circumstances, and considering the mother's evidence overall against the background of the uncontested evidence, including the father's text messages after separation, I am prepared to proceed on the basis that if true, the mother's general allegation of the father kicking the dog “repeatedly” warrants a genuine concern at this interim stage that there may have been a more extensive incidence of this form of family violence than admitted by the father, and that it may not have been as benign as he suggested.
The mother said that “on several occasions”, when the father approached her for sex and she declined, he verbally abused her, calling her names such as “frigid bitch”, and asked her if she was gay and preferred women. She then said-
“On other occasions I was simply not able to physically overpower (the father) (he is much larger than me) and he had sex with me even though I didn’t want to.”
The father denied ever raping the mother or overpowering her for sex. He said that if the mother did not want to have sex, it did not happen. He denied calling the mother names if she refused sex.
The mother gave no evidence of any occasion when she said she was sexually assaulted by the father, or of any occasion when she was verbally abused by the father for declining to have sex with him. However, she also said that she left the matrimonial home at separation because of the father's violence and alcohol consumption, and that she could “recall specific incidents”. The only specific incident of family violence she related in her evidence was the incident of being pushed over when eight months pregnant with [W]. Her evidence about the father's alleged mistreatment of the family pet did not refer to any specific occasions this is said to have occurred.
The mother alleged that if she did something the father disapproved of, she got “the silent treatment”. She said on several occasions during the parties’ cohabitation the father moved out of the marital bedroom and did not speak to her for days. She said that on one unspecified occasion this was for an unspecified number of weeks.
The father said that it was not possible to have a “rational conversation” with the mother regarding their differences. He said the mother would often go into fits of rage throwing things like remote controls at him and swearing at him. He said the best thing he found was to go silent and let the mother think about the issue and it would usually be resolved when the mother calmed down within hours or days after. The father gave no evidence of any specific incident when he alleged the mother threw something at him.
There is thus common ground that the father would not speak to the mother on occasions when the parties disagreed, however there are issues as to the circumstances in which this occurred, and for how long it would last.
The mother said she was always questioned by the father if and when she went out as to who she was going out with, what she purchased, how much money she spent, how long she would be, and what time she would be home. She said if she arrived home late, it would “always” cause an argument as to how long she had been out.
The mother said she did not apply for a family violence order, stating-
“I am now just learning that (the father's) behaviour may be considered family violence.”
The maternal grandmother swore an affidavit in the mother's case. She lived with the parties in the granny flat from before [W]’s birth until 2008. She gave no evidence of observing any violent or abusive behaviour by the father towards the mother. The mother did not indicate whether her mother was present at any time when the father was violent or abusive towards her.
It is agreed that after separation, the father sent the mother a number of text messages. There is no issue about the content of some of these messages.
The father asserted that after the mother took the children away, he repeatedly tried to speak to the children by phone and the mother repeatedly blocked his attempts. After the mother allegedly prevented or restricted his communication with the children, he sent text messages to the mother containing the following (verbatim)-
a)“You are finished in every sense of the word. Hopem you had good advice. Asta la vista baby. When the kids are after their mum what do you want me to tell them?” (16 November 2011, 11.04 pm.)
b)“Your a deadshit like your mother. I’m gunna destroy everything you treasure. Namely money.” (16 November 2011, 11.21 pm.)
c)“And when our children are back in their rightful place I’m gunna take supreme joy in doing to you what you’ve done to me. Oh yeah that reminds me. I should call Centrelink and remind them of our deal that my testimony = immunity from prosecution. That’s right bitch. I sold u out like you sold me out. So now biatch of a mother, and you as a biatch of a mother will suffer karma that is so justified.” (16 November 2011, 11.39 pm.)
d)“When you get arrested your stupid mother will never see those kids again. So tell her to enjoy it cause she will never see them again.” (17 November 2011, 12.09am.)
e)“Just between me and you. I cant wait to root a chick that does more than just lay there.” (17 November 2011, 12.48am.)
f)“Or maybe I have already. Yeah baby.” (17 November 2011, 1.00am.)
g)Having sent a message on 22 November 2011 at 1.27pm saying he had received the mother's documents filed in these proceedings – “I’m so keeping this paperwork for the kids. …” (22 November 2011, 5.11pm.)
In a series of messages in November 2011 the father repeatedly demanded that the mother agree to DNA testing of all the children as he alleged the mother had been unfaithful to him. When I specifically enquired, both parties advised the court that no issue of parentage is being raised in these proceedings.
The father's messages to the mother after separation are threatening, abusive and demeaning of the mother. The implicit justification for them in the context of the mother's refusal to facilitate the father's requests to communicate with the children or tell him where they were in my view cannot excuse them.
The mother also received two abusive text messages from the father's sister’s partner, Mr P, in November 2011. Amongst other things, Mr P gloated to the mother in both text messages about enjoying the spacious and comfortable home owned by the parties that the mother had wanted the parties and children to move into before separation but which the father blocked. There is no evidence on which I could infer that Mr P was acting at the instigation of the father.
The Family Law Act requires the Court to treat family violence seriously. It is a serious matter with potentially serious adverse consequences for children, not only in impairing the ability of the victim, often the mother and primary carer of the children, to care for the children physically and emotionally, but also in its potential to significantly harm the emotional, psychological, social and cognitive development of children who are exposed to it.
However, the Court can only respond to proven facts, and the existence of family violence is a fact capable of proof. It is not proven by the mere assertion it has occurred. As the definition of the term quoted above makes clear, it requires evidence sufficient to satisfy the court of the existence of all the matters encompassed in that definition.
It is not unusual at an interim hearing for parties to rely on evidence less detailed and extensive than might be expected for a final hearing. However, if a party seeks to raise a fact as a significant issue, there must be some evidence which, if accepted, is probative of the fact, even at an interim stage. And the more serious the fact and its attendant circumstances and consequences, the greater the obligation on the party seeking to rely on it to put persuasive evidence of that fact before the court (see Evidence Act 1995, s.140(2)(c)).
The mother’s allegation that “on … occasions” she was unable to “overpower” the father , who is much larger than her, and that “he had sex with me even though I didn’t want to” is an allegation that the father sexually assaulted her on an unspecified number of occasions during their cohabitation. This is a most serious allegation to make.
This evidence of the mother is limited to expressions of conclusions and opinions, and inadmissible but for s.69ZT of Family Law Act. Being admissible only by virtue of that section, the evidence is to be given such weight as the court considers it should have (s.69ZT(2)).
In the absence of any evidence sufficient, if true, to prove facts on which the court could find that the father forced the mother to have sex with him against her will, I am not satisfied that the affidavit evidence relied on by the mother at this stage is sufficient to raise family violence in the form of coerced sex as a factual issue the court can consider. This is especially so when the mother said she could “recall specific incidents” of the father's violence and alcohol consumption, but gave no evidence of any incident when she said she was coerced into having sex with the father.
The mother's evidence, if true, is indicative of controlling behaviour by the father throughout the parties’ cohabitation, in the form of questioning her about her movements, what she bought and how much she spent, and arguing if she arrived home late, and of violence in the form of “repeatedly” kicking the family pet to the children’s distress, and pushing the mother over when she was eight months pregnant with the eldest child. Some of the father's text messages, both as to their content, number, intensity or frequency, and time of day sent, may be consistent with the mother's assertion of controlling behaviour by the father, although they may also be consistent with an angry and intemperate reaction by the father to the mother taking the children away and preventing the father spending time or communicating with them. Either way, those messages give cause for concern. They are at least arguably consistent with an aggressive, bullying attitude towards the mother, and thus consistent with the mother's assertions about her treatment by the father during cohabitation.
Thus, while the court cannot find factual matters in dispute proved at this stage, the evidence overall, as to both contested and agreed facts, is sufficient to warrant consideration of the parenting arrangements on the basis there may have been family violence by the father during the parties cohabitation, and also in the period immediately after separation.
I am not satisfied the father's evidence of the mother throwing things at him, if true, raises any issue as to family violence. There is no direct evidence of the requisite fear on the father's part, and the facts asserted by him are insufficient to warrant such fear being inferred. Nonetheless, if true, it does indicate the children may have been exposed to inappropriate aggressive behaviour by the mother.
Alleged alcohol abuse
The mother asserted that the father drank every day, on average consuming two to four cases or up to 96 beers a week. She asserted that if there was no beer, the father drank port which he bought in four litre containers. Other than referring to the father seeking to play with the children when they had gone to bed for the evening, she gave no evidence of observed effects of the alleged alcohol consumption on the father.
The father said his drinking habits had not changed in the fifteen years the parties were together. He said he usually consumed one case of beer per week, or three or four beers a day.
There was no evidence from either party of the size or strength of the beers to which they were referring.
The father said the mother also consumed alcohol. He did not suggest she drank to excess.
I note the maternal grandmother, despite having lived with the parties for so long and thus, one would expect, having been in a position to observe drinking by the father to the extent the mother alleged, made no mention of the father's drinking. Whether the maternal grandmother’s failure to refer to this can be satisfactorily explained, however, must await a final hearing when the witnesses can be cross-examined. I am not prepared to draw an adverse inference from her failure to do so at this interim stage.
Alleged verbal abuse of the children
The father asserted that the mother is “very verbally abusive” towards the children, at least six times a day swearing at and verbally abusing them. He said the mother often told [Z] she is not the child’s mother, saying to the child “You were a mistake. I only incubated you for your father.”
Despite this, the father proposes that the children be cared for by the mother half the time. He sought no orders that the mother not swear at or verbally abuse the children. That suggests that the father does not see this as a significant issue in relation to the children’s welfare, and as with other criticisms he made of the mother's parenting, in my view suggests it is not a significant issue at this stage.
Alleged exposure of children to sexual behaviour
The mother alleged that on 20 April 2012, while driving with the children and the maternal grandmother, [X] asked whether the father was gay, spelling the word rather than saying it. She said when she asked why [X] had asked that question, [X] responded-
“Daddy and Mr P touch each other on their private parts.”
The mother said [Z] then said-
“Yeah Daddy and Uncle [P] touch each other’s doodles.”
She said [X] then said-
“Uncle [P] would come out of the bathroom without a towel around him in the nude.”
The mother said neither she nor the maternal grandmother questioned the children further about this. The mother said this was the first time she had heard this from the children. The maternal grandmother made no reference to this in her affidavit despite being in the car with the mother and the children when the alleged disclosure was made.
The father's affidavit was sworn before the mother's affidavit in which this allegation was made. The father did not rely on any affidavit evidence in response to this allegation. I am satisfied however that I should proceed on the basis that he would vehemently deny the allegation.
The mother proposed the children spend block school holiday time with the father in New South Wales. She sought an order restraining the father from exposing any of the children to inappropriate sexual conduct. The Independent Children's Lawyer did not seek such an order, nor did she indicate she supported this order as sought by the mother.
The issue raised by this aspect of the mother's evidence was not addressed at all in submissions on behalf of the mother, or in submissions by the Independent Children's Lawyer.
I cannot make a finding that anything untoward occurred, such as the mother said the children reported, but I must proceed on the basis that it might have. However, where the issue was not even adverted to as a relevant consideration in submissions on behalf of the mother, who was present in court at all times when the matter was heard, or by the Independent Children's Lawyer, in my view I am not justified in proceeding on any basis other than treating the injunctive order the mother seeks as an adequate mitigation of any possible risk to the children if the mother's evidence is true and if what the children are said to have disclosed is true.
Financial cost of returning to Sydney
As mentioned, on 25 May 2012, interlocutory orders were made by consent requiring the parties to sell the former matrimonial home. The father currently occupies the matrimonial home. When he will need to vacate it is unknown. When he does, he will need to rent accommodation suitable to accommodate himself and the four children. If the mother returns to the Sydney area, she too will need to rent accommodation suitable for herself and the four children.
It was agreed that it will cost each of the parties at least $340 per week to rent suitable accommodation in the area in which the father proposed the children should live.
The father said from the bar table that he thought it would cost him about $200 per week to support the children, apart from meeting their accommodation costs, if they lived with him half the time, and that it would cost the mother a similar amount. There is no evidence from either party on this point. I propose to treat the father's assertion as an admission that it will cost the mother at least that amount to support the children in the area in which the father says they should live if she has them half the time. I will proceed on the basis that it would cost the father a similar amount, subject to what follows.
As mentioned, the father’s primary position included a proposal that he pay the loan instalments on the motor vehicle used by the mother, in the sum of $145 per week, and all the children’s educational expenses including uniforms, stationery, books, excursions and camping trips. However, there is no evidence how much the education costs would be or what part of the suggested $200 per week to support the children half the time this would represent.
On the basis of the mother's current net Centrelink benefits (averaging $434.94 per week – Exhibit D) and the current level of assessed child support ($318.60 per week – Exhibit F), if the mother's rent in Sydney was $340 per week and it cost her $200 per week to support the children when with her half the time, then, if the father paid the car loan, the mother would be left with a maximum of about $213 per week with which to meet all her own living expenses apart from accommodation costs.
However, if the children were in an equal time care arrangement, the care percentages of the parties for child support purposes would change and the mother may not continue to receive the current level of child support. There was neither evidence nor any submission made about this, nor about whether the mother's social security payments would increase if her child support reduced.
Further, if the children spend the majority of their time with the mother, as proposed by the Independent Children's Lawyer, then, while her child support may not go down at all or by as much, the mother's share of the weekly cost of maintaining the children would increase, but again the actual impact on the amount she may have left to support herself cannot be determined on the current evidence.
There is no evidence at to the amount the mother would need to meet her own self support commitments in Sydney other than accommodation. There is no evidence of the amount of bond the mother may need to rent accommodation, assuming I can proceed on the basis she will need to pay a bond, which was not adverted to in the evidence of either party. There is no evidence whether the mother would need to acquire furniture and appliances for rented premises in Sydney and if so, what it would cost her. There is no evidence beyond the mother's financial statement about her ability to meet the cost of her moving back and living with the children in the Sydney area. The mother has not sought orders that if she is required to return the children to Sydney she and the children have occupation of the former matrimonial home until its sale, nor has she sought to have the use of any items of furniture or appliances currently located in it.
Matters going to the mother's personal self-support needs, what it costs her to support the children, what financial need she may have to move with the children back to Sydney, and her ability to meet that cost are matters peculiarly within the mother's knowledge. If she chooses not to put evidence about those matters before the court (and she was given ample opportunity to seek belatedly to do so when her counsel referred at the end of final submissions to alleged bond and furniture issues for which there was no evidence, but declined to seek that opportunity), the court is entitled to proceed on the basis that such evidence would not assist her case.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There seems to be no issue that these children will benefit from a meaningful relationship with both parents, even though the mother suggested [W]’s time with the father should be according to her wishes. The issue is what is the most appropriate arrangement in all the circumstances for the children to have the opportunity to do so pending a final determination of the parenting issues.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied there has been family violence, as previously indicated, which has continued after separation with the father's abusive and threatening text messages to the mother.
Although there is no evidence of a continuation of this behaviour more recently, I am concerned that there remains a risk of the children being exposed to conflict between the parents, especially if the parents come into contact with each other in the children’s presence.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The mother's suggestion that 11 year old [W] does not want to speak to or see the father in my view cannot be given any significant weight where the mother says nothing about how or when the problem arose, or of attempting to find out the cause of the suggested estrangement and address that cause, or of encouraging the child to speak to or spend time with the father once the problem arose.
There is otherwise no evidence of the children’s views.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I am satisfied all children have a good relationship with their mother. On the basis of my finding that it is more likely than not that the mother was the children’s primary carer, I am satisfied it is more likely than not that the bond between the children and their mother is stronger than that between the children and their father.
I am satisfied the three youngest children have a good relationship with their father.
On the mother's evidence there may be some current difficulty in the relationship between [W] and the father, but until a few months after separation, there was no indication of any significant problem. In the absence of evidence on the issue from the mother, I am unable to determine the cause of the problem or how it might be addressed. Assuming there is some issue at present in that relationship, for reasons stated in relation to [W]’s views, I am not satisfied I should give any significant weight to the suggested current problem in that relationship. I note that the Independent Children's Lawyer, who has interviewed the children, did not differentiate between [W] and the other children in the orders she proposed for the children to spend time with the father.
I infer the children have a good relationship with their maternal grandmother and her partner, with their paternal grandparents, and with other members of their paternal family living in the Sydney area.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has by her actions since separation demonstrated an unwillingness to facilitate the father's involvement with the children. She has denied and limited the father's communication with the children, and she has denied and significantly restricted the opportunities for the father to spend time with the children. Further, she has given no evidence of attempting to encourage [W] to speak to and spend time with the father after the child allegedly commenced to resist doing so, and, assuming the child is resistant to doing so, has made no proposal to identify and address the cause of the problem.
The only apparent reasons for the mother's obstruction of the father spending time and communicating with the children after separation is the mother's allegations of family violence and alcohol abuse by the father, and, perhaps, a concern that if she permitted the father to have the children he would not return them to her.
Soon after separation the father threatened that he would gain the care of the children and prevent the mother and the maternal grandmother seeing the children, and on that basis from that point on I am satisfied the mother may have had a legitimate basis for being reluctant to permit time with the father until court orders were in place.
I am satisfied that the father's admitted threat to prevent the mother and the maternal grandmother seeing the children raises concerns about the father's commitment to facilitating an appropriate relationship between the children and their mother and extended maternal family.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
At this stage of the proceedings, with untested evidence and without the assistance of any expert evidence on the issue, it is difficult to confidently assess the impact on the children of either leaving them in Queensland or requiring they return to the Sydney area.
However, it is clear that if the children remain in Queensland, the opportunities for the children to spend time with the father will be significantly less than if the children return to the Sydney area. This is likely to impede the ongoing development of the children’s relationship with the father, and significantly reduce the opportunities, in the words of s.60CC(2)(a), to benefit from a meaningful relationship with him. Returning to Sydney would provide more, and more frequent, opportunities for the children to directly interact with their father.
Remaining in Queensland will, I am satisfied, make the mother more content, as it is what she seeks. It is where she said her support network is. Neither party gave any evidence about whether or not the mother had any friends who could provide the mother with practical and emotional support in the area in which the parties lived for many years before the mother relocated to Queensland and to which the father seeks that the children be returned. I am not satisfied that the evidence as it stands suggests that ordering a return of the children, and the mother accompanying them, will so adversely affect the mother emotionally or psychologically as to impair her ability to parent the children.
Requiring the children to return to live in the Sydney area will involve a change of residence and school for the children. I note that changes of address and of school have been frequent occurrences for these children before separation. Considering the frequency of these moves before separation, I am not satisfied that requiring the children to return to live in the Sydney area pending a final determination of parenting arrangements, with the consequent change of residence and school, will have any further significant adverse effect on them. I am so satisfied even acknowledging that in a final hearing, the court may order that the children live with the mother in Queensland, if that remains her preferred option, and hence there may be yet another change of residence and school for the children if I order their return to the Sydney area.
Requiring the mother to return the children to live in the Sydney area, on the premise the mother will also relocate back to New South Wales, may expose the mother to a greater risk of family violence in that there would be more and more frequent occasions when the parents would need to meet for changeovers of the children between them. Hence, it would involve a greater risk of exposure of the children to family violence. The mother proposed parenting arrangements that would have permitted changeovers to be attended by either her or her mother and step father. The father’s proposed changeover arrangements involve the parties meeting at each changeover and their homes. The Independent Children's Lawyer proposed changeovers at school or the parents’ homes.
I am satisfied that the greatest risk to the mother at changeovers, assuming her evidence of family violence is correct, is of verbal abuse and denigration. In my view, the risk of the children being exposed to that form of family violence can be adequately mitigated by a non-denigration order.
The change involved in the father's proposal for equal time will significantly reduce the children's time with the parent with whom I am satisfied the children are likely to have a closer bond and who has been their primary carer. While absent expert evidence the extent and duration of any negative effect on each of the children cannot be assessed, I am concerned nonetheless that it may have adverse consequences for the children. I am concerned those adverse consequences may be greater than the benefit to the children of living with their father for such significant periods. I am also concerned that if the mother's allegations of the father's alcohol consumption are true, then, despite the mother proposing block holiday time with the father together with an order restraining him drinking alcohol when he has the children and in the immediately preceding hours, it will increase the risk to the children if the father does not comply with such an order.
Whether the children remain in Queensland or return to the Sydney area, they will be living distant from at least one grandparent. While the maternal grandmother has lived distant from the children for some time before the mother's unilateral relocation, she lived at the same address as the parties and the children until about 2008, and I infer is well know to the children. I have found the children are likely to have a good relationship with her. I have also found the children are likely to have a good relationship with the paternal grandparents and other members of their paternal family living in the Sydney area.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There will clearly be significant practical difficulty and expense in the children spending time with the father if they remain living in Queensland. I have already commented on the limited number of weekends the father is free due to his work commitments, to the lack of evidence as to the cost of the father spending time with the children, either in Queensland or, during school holidays, in Sydney, and the number of airfares for which the father would be liable under the order the mother seeks. The inference from that order is that the mother cannot contribute to the cost of airfares.
As with the absence of evidence from the mother about the expenses of relocating back to the Sydney area, I will proceed on the basis that the father's failure to provide evidence sufficient to enable the court to assess his ability to meet the costs of travel means that evidence would not have assisted his case.
Because of the significant gaps in the evidence of both parties, it is highly uncertain what time the father and the children would in fact spend together if the children remain in Queensland.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The inference from the orders the father seeks is that he concedes the mother is at least as capable as he is of meeting the children’s needs.
The mother's failure to facilitate the children’s ongoing relationship with the father after separation raises concerns about her appreciation of the children’s need for that relationship and ability to benefit from it. That benefit is implicitly acknowledged by the mother's proposals for orders to enable the children to resume that relationship.
The father's threats to the mother to gain the care of the children and prevent her and her mother seeing them at all raises similar concerns about the father.
Thus there are significant concerns about the ability of both parents to place the children’s needs ahead of their own, and above the parental conflict.
I have already noted the inappropriateness of both parties using [W] as a messenger between them in negotiating the father's time with the children during the last school holidays. This again raises questions about both parents’ appreciation of the need for the children not to be involved in or exposed to the parental conflict, and hence raises doubts about the ability of both parents to meet the children’s needs in this respect.
I am further concerned about the father's understanding of the need to protect the children from exposure to the parental conflict because of his threat to the mother to show the children copies of affidavits filed in the proceedings.
The issue about the father's alcohol abuse is also of concern. If the mother's allegations of the level of the father's alcohol consumption are correct, there must be some serious concern about the father's ability to care for these children. However, the mother's proposals for a restraint on the father consuming alcohol when the children are with him, and the times she proposes they spend with him, including half of all school holidays, suggests the mother is satisfied that the father can remain abstinent for up to three weeks. Whether such a proposition is consistent with the extent of the father's reliance on alcohol alleged by the mother must await the receipt of expert evidence on the issue. Despite this, and although the mother's allegations are denied, the court cannot simply ignore this evidence as, if true, it raises significant safety concerns for the children with the father.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have mentioned [W]’s age, and given reasons why nonetheless I am not satisfied her alleged wishes should be given any significant weight at this stage. I am not satisfied that this matter is otherwise relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Matters relevant under this consideration have already been dealt with in the context of s.60CC(2)(b) and (3)(c) and (f), and will be touched on below when addressing s.60CC(4) and (4A).
(j) Any family violence involving the child or a member of the child’s family
I have made findings as to family violence and dealt with the evidence on this issue.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There is no evidence of any family violence orders against either party.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings and, unless the parties ultimately settle the parenting issues, there will be a further hearing to determine final parenting arrangements whatever order the court now makes.
Consideration of s.60CC(4) and (4A)
I am satisfied the father has sought to take appropriate opportunities, especially since separation, to be involved with the children by communicating with them and spending time with them. He has not been in a position to prevent the mother doing so, although he has threatened to gain the care of the children and prevent the mother and the maternal grandmother having any contact with them.
I am satisfied the mother has taken all opportunities to be involved with the children. I am satisfied that she has significantly impeded the father’s involvement with the children after separation, by moving to an undisclosed address, by significantly restricting communication between the father and the children, and by preventing or significantly restricting opportunities for the father to spend time with the children. Having regard to the nature and extent of possible family violence based on an assumption the mother's evidence is true, I am not satisfied this was necessary to ensure the children’s safety or wellbeing, at least until the father threatened to gain the care of the children and prevent the mother seeing them.
Assessment of competing proposals and other options
Parental responsibility
The finding of an incident of family violence is sufficient to render s.61DA inapplicable in this case (s.61DA(2)), and hence the rebuttable presumption about equal shared parental responsibility does not arise.
Neither party proposed equal shared parental responsibility, inferring that neither saw it as being in the children’s best interests. The Independent Children's Lawyer sought an order for equal shared parental responsibility, but did not make any submissions in support of such an order.
The alternatives are to make no order as to parental responsibility, to make an order for equal shared parental responsibility, or to make an order granting one parent sole parental responsibility.
The evidence satisfies me there is a significant level of hostility between the parents, and that their present ability to communicate civilly and respectfully is problematic. At least since separation, the mother has tended to dictate outcomes in relation to the children, and the father has tendered to bully, threaten and abuse the mother.
Making no order as to parental responsibility would leave both parents able to exercise parental responsibility for the children, with a risk they each may do so inconsistently, adversely affecting the children and further embroiling them in the parental conflict.
Making an order for equal shared parental responsibility would also be problematic in view of the apparent present inability of the parties to communicate about the children civilly and respectfully. Such an order may be productive of further dispute and contention between the parties, which would not be in the children’s best interests.
I have real concerns that granting one party sole parental responsibility for the children at this stage may simply give one party a powerful weapon that might be used against the other, and not necessarily in the children’s best interests.
I note that any parental responsibility order I make at this interim stage is to be disregarded by the court in deciding final parenting arrangements (s.61DB).
Despite the risk that an equal shared parental responsibility order may simply provide a venue for further disputation between the parents, in my view such an order is the preferable course and is likely to better promote the children’s best interests than any of the other alternatives. In my view it is the least worst option. It will in effect put each of the parents to the test, knowing their behaviour will be under close scrutiny in these proceedings, to demonstrate an ability to rise above their personal differences in the interests of their children. How they discharge that responsibility will be highly relevant in any final hearing of the parenting issues.
Live with arrangements
Having determined to make an interim order for equal shared parental responsibility, the court must consider an equal time arrangement in accordance with s.65DAA(1).
The father's proposal is not a mathematically equal time arrangement, although it approximates one as closely as the father's work commitments permit. If it should not be treated as an equal time arrangement, I will proceed on the basis that a truly equal time arrangement is not reasonably practicable because of the father's work commitments.
Whether it be sufficient to be treated as an equal time arrangement or be in truth a form of substantial and significant time, the first issue to be addressed under s.65DAA is whether the father's proposal is in the children’s best interests.
I am not satisfied it is. The principal matters leading me to this conclusion are-
a)I am satisfied it is likely the children are more closely bonded to their mother, who I am satisfied has been their primary carer;
b)I am concerned at the adverse effect on the children from significant separation from the mother if she in fact is their primary carer and they are closely bonded to her;
c)the father has not had the sole care of the children for any significant period; and
d)there must be some concern for the children in the father's care if the mother's evidence of his alcohol consumption is correct.
Assuming the father's proposal was in fact for equal time, the court must then consider the children spending substantial and significant time with each of the parents.
To the extent the father's proposal was for substantial and significant time, for the reasons just stated I am not satisfied it is in the children’s best interests.
However, I am satisfied an order for substantial and significant time is in the children's best interests, being an arrangement under which the children primarily live with the mother and spend overnight time with the father during each of his rostered off periods, similar to that proposed by the Independent Children's Lawyer, for half of school holidays as proposed by the mother, and with provision for Mother's Day, Father's Day, Christmas and the children’s birthdays.
This will enable the children to re-establish and maintain their relationship with their father much better than through the fewer and less frequent periods the children and the father could spend together if the children remained in Queensland, even assuming the father could afford the cost of doing so on all weekends he was available. I am satisfied the risks to the children, if the mother's allegations about the father's alcohol consumption and exposure of the children to sexual behaviour are true, can be satisfactorily mitigated by orders such as the mother proposed in relation to these two issues.
Being satisfied such an arrangement is in the children’s best interests, I must also be satisfied it is reasonably practicable, that is, feasible.
I am satisfied that if the parents live within thirty kilometres of the school the children most recently attended in New South Wales, as the father sought, the parents will live close enough to one another for a substantial and significant time arrangement to be feasible.
The current and future capacity of the parents to implement a substantial and significant time arrangement must be a matter of some concern, in light of the parents’ interaction since separation. Similarly their capacity to communicate with each other and resolve difficulties that may arise in the children moving between the parents’ households twice in every eight days, sometimes on weekdays and sometimes on weekends, is also a matter of some concern.
As with my findings in relation to equal shared parental responsibility, in my view it is reasonable to expect that, especially under the close scrutiny that will apply while these proceedings are on foot, given the opportunity the parents ought to be able to place the children’s needs ahead of their personal distrust and animosity.
The mother’s capacity to implement a substantial and significant time arrangement depends on her financial capacity to move with the children back to New South Wales and to rent suitable accommodation in the area in which the children would have to live under any orders I may make. There is a dearth of evidence on this issue. In my view it was as much a matter for the mother to point to evidence casting doubt on her financial capacity to implement a substantial and significant time arrangement as it was for the Independent Children's Lawyer and the father to point to evidence sufficient to satisfy me positively of the mother’s financial capacity to implement such an arrangement.
Matters going to the mother's ability to afford to move and to rent and fit out suitable accommodation in the Sydney area are peculiarly within her knowledge. Neither the father nor the Independent Children's Lawyer can put evidence of those matters before the court. If the mother chooses not to put evidence before the court going to those matters, then in my view she cannot be heard to argue, as he counsel was instructed to ultimately argue, that the mother could not afford a bond and had no furniture, especially when it was said all the furniture remained in the former matrimonial home and the mother did not seek an order to have the use of any of it if required to return to the Sydney area. As mentioned, I had highlighted the need to address the issue of reasonable practicability several times over the two days the interim parenting issue was before me, and even invited an adjournment application from the mother at the close of final submissions which would have afforded her another opportunity to forensically address the issue, and she declined that invitation, asking instead that I determine the matter on the evidence as it stood.
Within the limits of the evidence that has been placed before about the parties’ financial circumstances, the likely cost of rent and the costs of the children as previously canvassed, I am satisfied that the mother can afford to move back to the Sydney area and privately rent and furnish suitable accommodation for herself and the children, provided the father meets the loan repayments on the mother's car and all the children’s educational expenses with the proviso that such payments shall be in addition to and shall not affect the mother's child support and Centrelink payments.
I am satisfied that on balance the impact of a substantial and significant time arrangement will be beneficial for the children. While it will involve another change of residence and of school, as I have noted the children experienced several such changes during the parties’ cohabitation. It will enable the children to renew their interrupted relationship with their father.
I am therefore satisfied that a substantial and significant time arrangement is reasonably practicable.
Decision
I am therefore satisfied that the interim parenting arrangements that will be in the children’s best interests are for the parents to have equal shared parental responsibility, for the children to live with the mother, for the children to return the children to live within 30 kilometres of [W] School, and for the father to spend time with the children during each of his rostered off periods from 5.00 pm on the first rostered day off, that is, on the day on which his fourth consecutive rostered shift ends, until 5.00 pm on the third rostered off day, for half of all school holidays, and for a period on the Father’s Day weekend as nominated by him consistent with his work commitments, with his time to be suspended for a period on the Mother's Day weekend. The children should also spend time with both parents over the period from Christmas Eve to Boxing Day. The father should be restrained from consuming alcohol while the children are with him and for the period of twelve hours before the children are due to come into his care, and he should be restrained from exposing the children to any sexual conduct. Both parents should be restrained from denigrating the other or members of the other’s family to or in the presence or hearing of the children or any of them, and should be required to remove the children from the presence of any other person doing so. Both parents should be restrained from discussing the proceedings or issues raised in the proceedings with or in the presence or hearing of any of the children and should be required to remove the children from the presence of any other person doing so, and should be restrained from showing or allowing or permitting any of the children to see or read any documents filed in or prepared for these proceedings.
The inference from the father's application is that he would seek the return of the children to [W] School, although he did not seek such an order. I am not satisfied that this is necessarily in the children’s best interests. I note the number of changes of school these children have already endured, and that whether they return to [W] School or not, they are about to endure yet another change of school.
I am not satisfied it is necessarily in the children’s best interests that they be enrolled in a school that could be up to thirty kilometres from where they primarily live, of that they live up to thirty kilometres from the area in which most of their peers at that school would live. I note that it is not known where either parent will be living, as the father will have to vacate the former matrimonial home at some time under the order for its sale.
Thus, this will be the first test of the parents’ ability to exercise equal shared parental responsibility in a child focussed way. If they are unable to agree on the school in which the children should be enrolled, it will be necessary to apply to the court for further orders.
Finally, it is necessary to fix a time by which the mother must return the children to live in the relevant area in western Sydney. The Independent Children's Lawyer and the father sought that the mother return the children by 1 July 2012. The mother sought no different order, although suggesting she may have some difficulty complying with an order for return, which was not supported by evidence.
In the circumstances, I will require the mother to return the children by 15 July 2012. This will allow the children to finish the second school term in Queensland and commence the third school term in New South Wales.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 27 June 2012
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